REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT

First Judicial Region
Branch ___
Baguio City

DAEMON E. TARGARYEN Civil Case No. __________

Plaintiff,
for:
-versus-
Collection of Sum of
Money and damages with a
JON A. SNOW prayer for the issuance of
Writ of Preliminary
Attachment
Defendants.
x------------------------------------------------x

PRE-TRIAL BRIEF
(for the Plaintiff)

The Plaintiff, DAEMON TARGARYEN, through counsel, most

respectfully files this pre-trial brief as follows:

I. BRIEF STATEMENT OF THE PLAINTIFF’S CLAIM AND

OUTLINE OF ADMITTED FACTS

1. That on January 1, 2019, defendant borrowed the amount of Fifteen

Million Pesos (P15, 000, 000.00) with an interest of 10% and 5%
penalty for delay from Plaintiff, evidenced by the Written Loan
Agreement between the parties, herein attached to as EXHIBIT “B”;

2. Defendant guaranteed that he will pay the whole amount of Fifteen

Million Pesos (P15,000,000.00) with an interest of 10% and 5 %
after 12 months or on January 1, 2020. However, on the said date,
defendant did not make any payment neither on the principal
amounts nor the interest;

3. Three Demand Letters were sent to the defendant hereto attached as

EXHIBITS “E”, “E-1” and “E-2” were sent to defendant on February
25, 2020, March 25, 2020, and May 15, 2020 respectively,
compelling defendant to pay, but to no avail;
 4. That up to this date, no payment has yet been made, contrary to the
allegation of the defendant that there was already payment of the
obligation;

II. STATEMENT OF WILLINGNESS TO ENTER INTO AN

AMICABLE SETTLEMENT/COMPROMISE

5. The Plaintiff is willing to enter into an amicable settlement; Likewise,

if applicable, plaintiff is willing to submit the case to any of the
alternative modes of dispute resolution.

III. ISSUES TO BE RESOLVED

6. The Plaintiff proffers the following issues to be resolved by this

Honorable Court:

A. Factual Issues:

a. Whether or not the defendant received the amount of Fifteen

Million Pesos (P15, 000, 000.00) from the Plaintiff;

b. Whether or not the Defendant acknowledged his monetary

obligation to the plaintiff through the payment of the principal
amount of Fifteen Million Pesos (P15, 000, 000.00) by checks
drawn for the plaintiff;

c. Whether or not the check drawn to the Plaintiff was dishonored

due to insufficiency of funds;

d. Whether or not the defendant has adamantly and continuously

refused to pay back the principal loan and the interest to the
plaintiff despite repeated demands for him to do so;

B. Legal Issues:

a. Whether or not the plaintiff is entitled to the payment of the full

amount of the loan and the interest that accrued therein;

b. Whether or not payment of the loan and interest thereof has

already been paid;

c. Whether or not the Plaintiff is entitled to Damages; and

 d. Whether or not a writ of preliminary attachment should be
issued in favor of the plaintiff.

IV. PROPOSAL FOR THE STIPULATION AND ADMISSION OF

FACTS

7. The following are the facts propounded by the Plaintiff as stipulations

and admissions for consideration in this case:

7.1 That the parties entered into a loan agreement on January

1, 2019 on the amount of Fifteen Million Pesos
[Php15,000,000] with an interest of 10% annually and
5% penalty for delay;

7.2 That the parties agreed that the loan, along with the
corresponding interest, will be paid on January 1, 2020;

7.3 That the defendant issued a post-dated check on January 1,

2020, however, when the same was presented for payment, it
was dishonored for “Drawn Against Insufficient Fund”;

7.4 That the defendant failed to make good of the check within
5 days from the receipt of the Notice of Dishonor, contrary to
the claim of the Defendant;

7.5 That there were three demand letters sent to the Defendant
and actually received by him, contrary to the allegation of the
Defendant;

7.6 That no payment of the principal, interest of the obligation,

and penalty for non-payment has been made up to this date,
contrary to the allegation of the Defendant;

7.7 That despite having sufficient properties to pay his

obligation to Plaintiff, Defendant deliberately concealed his
properties in order to avoid paying his obligation to Plaintiff.

V. DOCUMENTARY EXHIBITS

8. The Plaintiff endeavors to present the following documentary

exhibits to prove her cause:
8.1 Loan Agreement executed between plaintiff and defendant;
8.2 Post-dated check;
 8.3 Formal Notice of Dishonor, served and received by Defendant;
8.4 Demand for Payment, served and received by Defendant;
8.5 Second demand letter, served and received by Defendant;
8.6 Final Demand Letter served and received by defendant;
8.7 Lawyer’s Billing Statement.

VI. WITNESSES TO BE PRESENTED AND THE NATURE OF

THEIR TESTIMONY

9. Daemon Targaryen, Plaintiff, will testify regarding the execution of the

Written Loan Agreement and the fact that Defendant borrowed Fifteen
Million (P15, 000,000.00) from the Plaintiff. He will also testify on the
dishonor of the check issued by the Defendant as payment for his loan and
the failure of the Defendant to make good of the check nor settle his
obligations despite repeated demands by the Plaintiff. His Judicial Affidavit
is hereto attached; and

10. Atty. Rosemarie Bumugao, with office address at Room 32, 3rd Floor,
Laperal Building, Session Road, Baguio City. She will testify on the fact
that she was engaged by Plaintiff to draft the three demand letters addressed
to the Defendants, that she personally delivered the same to the defendant,
and that the demand letters were not returned to her for the reason that there
was a failure to deliver them to the defendants. Her Judicial Affidavit is
hereto attached.

11. Ma Rosa Linawen, will testify that she has not signed nor have any
knowledge of any acknowledgement receipt indicating that the Defendant
has paid his obligation to Plaintiff;

12. Kenedy Mariano, Secretary of the Plaintiff, will testify that on February
27, 2020, the Plaintiff is with him on a business trip that lasted for 3 days
until February 29, 2020, and that he did not see the Defendant hand over the
payment for his obligation to Plaintiff on that day nor did he see Plaintiff
signing any acknowledgment receipt.

VII. APPLICABLE LAW AND JURISPRUDENCE

13. Article 1933 of the Civil Code of the Philippines sets forth that by the
contract of loan, one of the parties delivers to another money or other
consumable thing, upon the condition that the same amount of the same kind
and quality shall be paid, in which case the contract is simply called a loan
or mutuum.

14. The same rule is echoed in Article 1953 of the Civil Code of the
Philippines that a person who receives a loan of money or any other fungible
thing acquires ownership thereof, and is bound to pay the creditor an equal
amount of the same kind and quality;

15. In Spouses Salvador Abella and Alma Abella v. Spouses Romeo Abella
and Annie Abella; G.R. No. 195166; July 08, 2015, the Supreme Court
discussed that:

Articles 1933 and 1953 of the Civil Code provide the

guideposts that determine if a contractual relation is one of
simple loan or mutuum: Art. 1933. By the contract of loan, one
of the parties delivers to another, either something not
consumable so that the latter may use the same for a certain
time and return it, in which case the contract is called a
commodatum; or money or other consumable thing, upon the
condition that the same amount of the same kind and quality
shall be paid, in which case the contract is simply called a loan
or mutuum. Simple loan may be gratuitous or with a stipulation
to pay interest. Page | 3 Art. 1953. A person who receives a loan
of money or any other fungible thing acquires the ownership
thereof, and is bound to pay to the creditor an equal amount of
the same kind and quality.

16. Article 2209 of the New Civil Code. If the obligation consists in the
payment of a sum of money, and the debtor incurs in delay, the indemnity
for damages, there being no stipulation to the contrary, shall be the payment
of the interest agreed upon, and in the absence of stipulation, the legal
interest, which is six per cent per annum. x x x When the obligation is
breached, and it consists in the payment of a sum of money, i.e., a loan or
forbearance of money, the interest due should be that which may have been
stipulated in writing. Furthermore, the interest due shall itself earn legal
interest from the time it is judicially demanded. In the absence of stipulation,
the rate of interest shall be 6% per annum to be computed from default, i.e.,
from judicial or extrajudicial demand under and subject to the provisions of
Article 1169 of the Civil Code.

17. ARTICLE 1144 of the Civil Code of the Philippines. The following
actions must be brought within ten years from the time the right of action
accrues: (1) Upon a written contract (emphasis supplied)xxx. The right of
the plaintiff to collect the unpaid loan has not yet been prescribed. The
plaintiff has ten (10) years from the accrual of the cause of action.

18. The claim for interest arising from the contract of loan is clearly
stipulated in writing, as such, Article 1956 would be applied, to wit:
ARTICLE 1956. No interest shall be due unless it has been expressly
stipulated in writing.

19. Article 2209 of the Civil Code and Nacar vs. Gallery Frames, G.R. No.
189871, August 13, 2013 justify such monetary interest imposition, to wit:
“If the obligation consists in the payment of a sum of money, and the debtor
incurs in delay, the indemnity for damages, there being no stipulation to the
contrary, shall be the payment of the interest agreed upon, and in the absence
of stipulation, the legal interest, which is six per cent per annum.”

20. In Toledo v. Hyden 652 Phil. 70 (2010), the Court upheld as valid a
monthly interest rate of six percent (6%) to seven percent (7%). It noted that
in that case, the borrower was not in dire need of money when she obtained
a loan, and it was the borrower herself who was guilty of inequitable acts.
xxxWhether a stipulated interest rate is conscionable or unconscionable
would depend on the parties' contexts and the circumstances in which the
interest rate was applied.

21. In Government Service Insurance System v. Court of Appeals [G.R.

No. L-52478 October 30, 1986], this Court has ruled that the New Civil
Code permits an agreement upon a penalty apart from the monetary interest.
If the parties stipulate this kind of agreement, the penalty does not include
the monetary interest, and as such the two are different and distinct from
each other and may be demanded separately.

22. The plaintiff’s claim for attorney’s fees and appearance fees is pursuant
to Article 2208 of the New Civil Code, to wit: “ In the absence of
stipulation, attorney’s fees and expenses of litigation, other than judicial
costs, cannot be recovered, except: (1) When exemplary damages are
awarded; (2) When the defendant’s act or omission has compelled the
plaintiff to litigate with third persons or to incur expenses to protect his
interest;

23. ARTICLE 2217 of the New Civil Code of the Philippines. Moral
damages include physical suffering, mental anguish, fright, serious anxiety,
besmirched reputation, wounded feelings, moral shock, social humiliation,
and similar injury. Though incapable of pecuniary computation, moral
damages may be recovered if they are the proximate result of the
defendant’s wrongful act or omission.

24. In Ng Wee v. Tankiansee, 568 Phil. 819 (2008), the Supreme Court held
that: “To sustain an attachment, it must be shown that the debtor in
contracting the debt or incurring the obligation intended to defraud the
creditor. The fraud must relate to the execution of the agreement and must
have been the reason which induced the other party into giving consent
which he would not have otherwise given. To constitute a ground for
attachment in Section 1 (d), Rule 57 of the Rules of Court, fraud should be
committed upon contracting the obligation sued upon. A debt is fraudulently
contracted if at the time of contracting it the debtor has a preconceived plan
or intention not to pay”.

25. A writ of preliminary attachment is a provisional remedy issued by a

court where an action is pending. In simple terms, a writ of preliminary
attachment allows the levy of a property which shall then be held by the
sheriff. This property will stand as security for the satisfaction of the
judgment that the court may render in favor of the attaching party. In
Republic v. Mega Pacific eSolutions (Republic),45 we explained that the
purpose of a writ of preliminary attachment is twofold:
First, it seizes upon property of an alleged debtor in advance of
final judgment and holds it subject to appropriation, thereby
preventing the loss or dissipation of the property through fraud or
other means. Second, it subjects the property of the debtor to the
payment of a creditor's claim, in those cases in which personal
service upon the debtor cannot be obtained. This remedy is
meant to secure a contingent lien on the defendant's property
until the plaintiff can, by appropriate proceedings, obtain a
judgment and have the property applied to its satisfaction, or
to make some provision for unsecured debts in cases in which
the means of satisfaction thereof are liable to be removed
beyond the jurisdiction, or improperly disposed of or
concealed, or otherwise placed beyond the reach of creditors.
[Tsuneishi Heavy Industries (Cebu), Inc. v. Mis Maritime
Corporation, G.R. No. 193572, Aprilk 4, 2018].

VIII. RESERVATION OF TESTIMONIAL AND DOCUMENTARY

EVIDENCE AND TO AVAIL THE MODES OF DISCOVERY

26. PLAINTIFF hereby reserve the right to present additional testimonial

and/or documentary evidence and to avail of the Modes of Discovery in the
course of the trial as they may deem fit and necessary towards the successful
litigation of their causes of action.

IX. AVAILABLE TRIAL DATES

The following dates are respectfully reserved for trial:

27.1 November 27, 2022;

27.2ecember 4, 2022; and

27.3 December 11, 2022

RESPECTFULLY SUBMITTED.
Baguio City; October 22, 2022.

FELP LAW OFFICE

Counsel for Plaintiff
#16, Room 102, Laperal Bldg.
Session Road, Baguio City
[email protected] | (02) 981-2934

By:

Mary Luz Ebez

Counsel for Plaintiff
[email protected] | 0917 186 5342
Roll No. 75421; July 25, 2020
IBP No. 87634; July 30, 2020
PTR No. 856235; January 8, 2022, Pasig City
MCLE Compliance No. VII-0007412, issued April 15, 2022

Nel John Famuleras

Counsel for Plaintiff
[email protected] | 0916 234 5342
Roll No. 86734; June 25, 2020
IBP No. 98134; July 30, 2020
PTR No. 643679; January 8, 2022, Pasig City
MCLE Compliance No. VII-0003451, issued April 15, 2022

Cleah Maryell Llamas

Counsel for Plaintiff
[email protected] | 0976 285 9319
oll No. 76543; July 25, 2020
IBP No. 23486; July 30, 2020
TR No. 676432; January 8, 2022, Pasig City
MCLE Compliance No. VII-0009235, issued April 15, 2022

Tanya Pakyo
Counsel for Plaintiff
[email protected] | 0916 284 5398
Roll No. 867454; July 25, 2020
 IBP No. 23455; July 30, 2020
PTR No. 643092; January 8, 2022, Pasig City
MCLE Compliance No. VII-0007861, issued April 15, 2022